Citation NR: 9735026
Decision Date: 10/16/97 Archive Date: 10/24/97
DOCKET NO. 93-03 190 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUE
Entitlement to an increased (compensable) rating for
residuals of a right zygomatic arch fracture and right
maxillary sinus wall fractures.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Parakkal, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1987 to June
1988 and from September 1988 to September 1991.
This matter comes to the Board of Veterans’ Appeals on appeal
from a January 1992 RO decision which granted service
connection for residuals of a fracture of the right zygomatic
arch (including sensory deficit), and assigned a 0 percent
rating; and the veteran appeals for a higher rating. In
November 1996, the Board remanded the case to the RO for
further development. By an April 1997 RO decision, it was
determined that clear and unmistakable error had been made in
the January 1992 RO decision, by not including fractures of
the right maxillary sinus [wall] (i.e., the bony wall
surrounding the sinus cavity) as part of the veteran’s
service-connected residuals of a fracture of the right
zygomatic arch. The April 1997 RO decision also determined
that an increased (compensable) rating was still not in order
for the service-connected residuals of the right facial
fracture.
The April 1997 RO decision also denied service connection for
sinusitis, including service connection secondary to the
service-connected residuals of the right facial fracture.
The veteran was informed of this decision in May 1997; to
date he has not appealed the adverse determination; and the
matter is not currently before the Board. 38 U.S.C.A.
§§ 7104, 7105, 7108 (West 1991 & Supp. 1997).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his residuals of a right zygomatic
arch fracture and right maxillary sinus wall fractures have
increased in severity such that an increased rating is
warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claim for an increased
rating for residuals of a right zygomatic arch fracture and
right maxillary sinus wall fractures.
FINDING OF FACT
The veteran’s residuals of a right zygomatic arch fracture
and right maxillary sinus wall fractures include an
asymptomatic facial scar which is no more than slightly
disfiguring, and some sensory deficit in the right malar
region of the face; moderate incomplete paralysis of the
trigeminal or facial cranial nerves is not shown.
CONCLUSION OF LAW
The criteria for an increased (compensable) rating for
residuals of a right zygomatic arch fracture and right
maxillary sinus wall fractures have not been met.
38 U.S.C.A. § 1155 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 4.31, 4.118, Codes 7800, 7804, 4.124, Codes 8205, 8207
(1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran served on active duty from September 1987 to June
1988 and from September 1988 to September 1991.
A review of the veteran’s service medical records shows that
in February 1991, he presented for treatment at an emergency
room. He said that, while cutting plexiglass with a saw, a
piece flew off and hit him in the right side of the face.
The provisional diagnosis was a blowout fracture. X-rays
were performed, and the impressions were complex but not
deforming fractures of the right maxillary antrum, and a
depressed fracture of the right zygomatic arch (with
accompanying fluid in the sinus and free air in the soft
tissues of the cheek). He underwent surgical treatment,
consisting of a closed reduction of the zygomatic arch
fracture, and a repair of a 3/4 inch laceration to the face
(which was secondary to the use of a defective towel clamp).
In June 1991, the veteran underwent a physical examination by
a Medical Board. It was noted that he had some decreased
sensation to light touch of the lateral aspect of the right
eye and right malar region. He had no tenderness to
palpation over the zygomatic arch; and there was no apparent
deformity to the bony structure of the zygomatic arch. The
diagnoses included status post right zygomatic arch fracture
with residual sensory deficit of the right malar region. The
veteran was discharged from service in September 1991, based
on physical disability (a knee injury).
In September 1991, the veteran filed a claim for service
connection for residuals of a fracture of the right zygomatic
arch, among other disabilities.
During a November 1991 VA compensation examination, the
veteran reported that during service his zygomatic arch was
fractured and surgically reduced. He complained he had no
feeling in the region lateral to his right eye. On
examination, he had no facial deformity or asymmetry. In the
area, one inch lateral to the outer canthus of the right eye,
he had a slightly curved vertical scar which was 5/8 inch
long, flat, non-tender, and non-adherent. It was noted that
the scar did not interfere with facial expressions. His
zygomatic arches were symmetrical with respect to appearance
and palpation. It was concluded that he had a history of a
right zygomatic fracture, status-post surgical reduction with
a residual scar.
In January 1992, the RO granted service connection for
residuals of a fracture of the right zygomatic arch,
including sensory deficit, and assigned a 0 percent rating.
Private medical records, dated in 1995 and 1996, reflect that
the veteran was treated for bronchitis, asthma, and
sinusitis, among other things.
Clinical diagnoses at a November 1996 VA examination included
a history of asthma, chronic sinusitis, and bronchitis. The
doctor recommended a CT scan of the sinuses to clarify
whether the veteran had chronic sinusitis, and to clarify
whether there was any interaction between the old facial
fracture and sinus problems. A December 1996 CT scan of the
sinuses reportedly showed marked mucoperiosteal thickening
and a small amount of fluid in both maxillary sinuses, with
partial opacification of the ethmoid air cells.
In February 1997, the veteran underwent a VA compensation
examination for the purpose of determining what the extent of
his residuals of a right facial zygomatic arch fracture were.
He complained that his main problem was sinus trouble. He
also said that when he got his hair cut, the barber’s
vibrating tremor (presumably from the electric hair cutter)
caused him to experience a funny sensation on his head, which
was located just above the ear and extended down to the
corner of the eye. On examination, he had a pinprick deficit
which extended from the ear over to the corner of the eye
(just above the right eye on the eyebrow); such had the
pattern of a small branch of the first division of the
trigeminal nerve on the right side; and it was noted that the
entire division had not been damaged. It was also noted that
the veteran expressed concern about having an indentation in
the skull just above his ear at the place where he said the
plexiglass struck the skull; and on objective evaluation it
was noted there was an area of palpable indentation. The
remainder of the neurological examination demonstrated no
abnormality. The impression was an injury to the portion of
the first division of the trigeminal sensory branch on the
right side. It was also recommended that a plain skull X-ray
be performed, to determine if there was any injury to the
bone, as an indentation was noted on palpation.
In April 1997, the veteran underwent a VA compensation
examination, during which he reported he had frequent sinus
infections since his right zygomatic arch fracture in
service. He said he had headaches, which were located at the
right temporal side of his head; he said he had no frontal or
other type of headaches; and he said he had some numbness of
the right frontal area. An examination of the external nose
was normal. A CT scan was performed and was completely
clear; however, it was also noted there was a small fragment
in the anterior wall of the right maxillary sinus, and such
may have been fractured at the time of his injury (right
zygomatic arch fracture) but represented no ongoing problem
as far as chronic sinusitis was concerned. The clinical
impressions were: post-surgical repair of a right zygomatic
arch fracture (which on palpation revealed no abnormality);
headaches of uncertain etiology (with numbness of the right
frontal area by history); and no evidence of chronic
sinusitis or any fracture lines which might cause chronic
pain in the area.
By an April 1997 RO decision, clear and unmistakable error
was found in the January 1992 RO decision, in that residuals
of right maxillary sinus wall fractures were not included as
part of the veteran’s service-connected residuals of a
fracture of the right zygomatic arch.
II. Legal Analysis
The veteran's claim for an increased rating is well grounded,
meaning plausible. The file shows that the RO has properly
developed the evidence; and no further assistance to the
veteran is required to comply with the duty to assist. 38
U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
When rating the veteran’s service-connected disability, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet.App. 589 (1991). However,
it is the more recent evidence which is of primary concern,
since this provides the most accurate picture of the current
severity of the disability. Francisco v. Brown, 7 Vet.App.
55 (1994).
The veteran alleges he has various residuals stemming from
his right zygomatic arch fracture and right maxillary sinus
fractures; however, at the present time, the only residuals
for which service connection has been established is a facial
scar and nerve involvement. Non-service-connected
conditions, including sinusitis and headaches, may not be
considered in the evaluation of the veteran’s service-
connected disorder. 38 C.F.R. § 4.14. If the veteran wishes
to pursue service connection (or timely appeal) for any other
disability he feels is associated with his residuals of a
right zygomatic arch fracture and right maxillary sinus
fractures, he may do so. However, the Board concurs with the
RO that at this time the condition is most properly rated on
the basis of residual scarring and nerve involvement.
A noncompensable evaluation is warranted for a slightly
disfiguring scar of the head, face, or neck. A 10 percent
evaluation requires that such a scar be moderately
disfiguring. 38 C.F.R. § 4.118, Code 7800. Superficial
scars that are tender and painful on objective demonstration
are assigned a 10 percent evaluation. 38 C.F.R. § 4.118,
Code 7804.
Moderate, incomplete paralysis of the fifth (trigeminal)
cranial nerve will be rated 10 percent disabling. 38 C.F.R.
§ 4.124, Code 8205. Ratings within Code 8205 are based on
the relative degree of sensory manifestation or motor loss.
Id. Moderate, incomplete paralysis of the seventh (facial)
cranial nerve will be rated 10 percent disabling. 38 C.F.R.
§ 4.124, Code 8207. Ratings within Code 8207 are assigned
based on the relative loss if innervation of the facial
muscles. Id.
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31.
A review of the record reveals that the veteran sustained a
fracture to the right zygomatic arch and right maxillary
sinus wall fractures in February 1991 when he was hit in the
side of the head by a piece of plexiglass. He underwent
surgical treatment including a closed reduction of the
zygomatic arch fracture and a repair of a 3/5 inch laceration
of the face. In June 1991, he underwent a Medical Evaluation
Board examination and it was noted that he had some decreased
sensation to light touch of the lateral aspect of the right
eye and right malar region. The diagnosis was status post
right zygomatic arch fracture with residual sensory deficit
of the right malar region.
Post-service medical evidence includes a November 1991 VA
compensation examination report which shows that the veteran
reported a loss of sensation in the region lateral to his
right eye. On examination, he had no facial deformity or
asymmetry. A 5/8 inch scar, which was flat, non-tender, non-
adherent, slightly curved, and vertical in position, was
noted 1 inch lateral to the outer canthus of the right eye;
and it was noted that such did not interfere with his facial
expressions. The zygomatic arches were noted as symmetrical
in appearance and on palpation.
More recent medical evidence includes a February 1997 VA
examination report which shows that the veteran had a
pinprick deficit which extended from the ear to over the
corner of the right eye. It was noted that the deficit
effected the small branch of the first division of the
trigeminal nerve on the right side, and that the entire
division of the nerve was not damaged. The impression was an
injury to the portion of the first division of the trigeminal
sensory branch on the right side.
In April 1997, the veteran was again examined by the VA. A
CT scan was performed, revealing a small fragment in the
anterior wall of the maxillary sinus; and it was suggested
that such may have been fractured at the time of the right
zygomatic arch injury. The clinical impressions were post-
surgical repair of a right zygomatic arch fracture, with no
palpable abnormalities. It was also noted that there were no
fracture lines of the sinuses which might cause chronic pain
in the area.
In summary, the Board notes that the veteran’s service-
connected residuals include a scar which is well-healed, non-
tender, and non-adherent. There is no evidence of record
which shows that the scar is tender, painful, or more than
slightly disfiguring, and absent such evidence, a compensable
rating is not warranted. 38 C.F.R. §§ 4.31, 4.118, Codes
7800, 7804.
The Board also notes that the veteran’s service-connected
residuals include nerve involvement. Over the years, the
veteran has complained of some decreased sensation of the
lateral aspect of the right eye and right malar region. When
he was recently examined by the VA, in February 1997, he had
a pinprick deficit which extended from the ear over to the
corner of the eye; such deficit had the pattern of a small
branch of the first division of the trigeminal nerve on the
right side; and it was opined that the entire division of the
trigeminal nerve had not been damaged. The remainder of the
neurological examination demonstrated no abnormality; and the
impression was an injury to the portion of the first division
of the trigeminal sensory branch on the right side. While
the Board notes that the veteran does indeed have some
sensory deficit localized to the right side of the face, it
appears to be very mild, according to reported clinical
findings and the veteran’s own accounts (such as having a
funny sensation when getting his hair cut), and there is no
evidence of record which shows that there is moderate
incomplete paralysis of either the trigeminal or facial
cranial nerves. Consequently, an increased rating to 10
percent under Codes 8205 and 8207 is not warranted, and a
zero percent rating is to be assigned in accordance with
38 C.F.R. § 4.31.
As the preponderance of the evidence is against the veteran's
claim, the benefit-of-the-doubt doctrine is not applicable,
and an increased rating must be denied. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
ORDER
An increased rating for residuals of a right zygomatic arch
fracture and right maxillary sinus fractures is denied.
L.W. TOBIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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